EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
September 15, 1999 between L90, Inc., a Delaware corporation (the "Company"),
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and Xxxx X. Xxxxx (the "Employee").
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R E C I T A L
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The Company desires to employ the Employee, and the Employee desires
to be so employed by the Company, on the terms and subject to the conditions set
forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth in this Agreement, the Company and the Employee hereby agree
as follows:
1. Employment.
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(a) Subject to the terms and conditions contained herein, the
Company hereby agrees to employ the Employee, and the Employee accepts such
employment, from the date hereof until the earlier of (i) the date which is two
years from the date hereof, provided that such initial term shall be
automatically renewed for successive one-year terms unless either party hereto
otherwise notifies the other in writing within 30 days prior to the end of such
initial term or any such successive term, or (ii) the date such employment is
terminated pursuant to Section 4 of this Agreement. During the Employee's
employment under this Agreement, the Employee shall perform such duties for the
Company as may from time to time be assigned to the Employee by the Board of
Directors of the Company (the "Board"). The Employee shall have the title of
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President and Chief Executive Officer or such other title or titles, if any, as
from time to time may be assigned to the Employee by the Board.
(b) The Employee will devote his entire business time, energy,
attention and skill to the services of the Company and its affiliates and to the
promotion of their interests. So long as the Employee is employed by the
Company, the Employee shall not, without the written consent of the Company:
(i) engage in any other activity for compensation, profit
or other pecuniary advantage, whether received during or after the term of this
Agreement;
(ii) render or perform services of a business,
professional, or commercial nature other than to or for the Company, either
alone or as an employee, consultant, director, officer, or partner of another
business entity, whether or not for compensation, and whether or not such
activity, occupation or endeavor is similar to, competitive with, or adverse to
the business or welfare of the Company; or
(iii) invest in or become a shareholder of another
corporation or other entity; provided, that the Employee's investment solely as
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a shareholder in another corporation shall not be prohibited hereby so long as
such investment is not in excess of one percent (1%) of any class of shares that
are traded on a national securities exchange.
(c) Prior to or concurrently with the execution of this
Agreement, the Employee has executed an Employee Proprietary Information, Trade
Secret and Confidentiality Agreement (the "Confidentiality Agreement").
2. Location of Employment. The Employee's principal place of
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employment shall be at the principal executive offices of the Company located at
Santa Monica, California, or the greater Southern California area, or, as may be
requested by the Board, at any other office of the Company or any of its
affiliates currently or hereinafter located in the State of California;
provided, that at the direction of the Board, the Employee may from time to time
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be required to travel to various domestic and foreign locations.
3. Compensation.
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(a) In exchange for full performance of the Employee's
obligations and duties under this Agreement, the Company shall pay the Employee
(i) a base salary at a monthly rate of $4,833.33, payable in accordance with the
Company's standard payroll practices, and (ii) sales commissions in accordance
with the Company's policies in effect from time to time. In any month in which
the Employee shall be employed for less than the entire number of days in such
month, the base salary payable under Section 3(a)(i) shall be prorated on the
basis of the number of days during which the Employee was actually employed
divided by the number of days in such month. The base salary provided for in
Section 3(a)(i) shall be reviewed not less frequently than annually by the
Board, or a committee thereof, and may be adjusted in their discretion.
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(b) The base salary and commission described in subsection (a)
hereof is a gross amount, and the Company shall be required to withhold from
such amount deductions with respect to Federal, state and local taxes, FICA,
unemployment compensation taxes and similar taxes, assessments or withholding
requirements.
(c) During the Employee's employment under this Agreement, the
Employee shall also be reimbursed by the Company for reasonable business
expenses actually incurred or paid by the Employee, consistent with the policies
established by the Board, in rendering to the Company the services provided for
in this Agreement, upon presentation of expense statements or such other
supporting information as is consistent with the policies of the Company.
(d) The Employee shall be entitled to 15 business days vacation
for each full year of employment under this Agreement, which vacation time will
accrue in accordance with the vacation policy of the Company.
(e) The Employee shall be entitled to participate in all benefit
plans (including deferred compensation plans and any medical, dental or life
insurance plans) which shall be available from time to time to the domestic
management employees of the Company generally, except to the extent such
participation in any plan would, in the opinion of the Board, alter the intended
tax treatment of such plan; provided, however, that the Employee shall have no
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right under this Agreement to participate in any stock option, stock purchase or
other plan relating to shares of capital stock of the Company or its affiliates,
which participation, if any, shall be governed by separate agreement. The
Employee acknowledges and agrees that the Board may in its discretion terminate
at any time or modify from time to time any such benefit plans.
(f) Other than as expressly set forth in this Section 3, the
Employee shall not receive any other compensation or benefits except to the
extent provided by the Board.
4. Termination.
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(a) The employment of the Employee under this Agreement may be
terminated by the Company immediately upon giving the Employee notice if (i) the
Board determines that the Employee is unable to discharge his essential job
duties by reason of illness or injury or (ii) the Employee has been unable to
discharge his essential job duties by reason of illness or injury for either (A)
a period of two consecutive months or (B) twelve weeks in any twelve-month
period.
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(b) The employment of the Employee under this Agreement shall
terminate on the date of the Employee's death.
(c) The employment of the Employee under this Agreement may be
terminated by the Company upon written notice from the Board that, in the
opinion of the Board, the Employee has (i) refused or failed (after reasonable
notice that such refusal or failure would result in termination of the
Employee's employment) to perform, to the satisfaction of the Board, any duties
assigned to the Employee by the Board, (ii) committed a breach of the terms of
this Agreement or any other legal obligation to the Company, (iii) failed to
perform any of the Employee's obligations under the Confidentiality Agreement,
(iv) demonstrated gross negligence or willful misconduct in the execution of the
Employee's assigned duties, (v) been convicted of or pleaded nolo contendere to
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a felony or other serious crime, (vi) repeatedly and intemperately used alcohol
or drugs, (vii) engaged in business practices which, in the opinion of the
Board, are unethical or reflect adversely on the Company, (viii) misappropriated
assets of the Company or (ix) been repeatedly absent from work during normal
business hours for reasons other than disability.
(d) The employment of the Employee under this Agreement shall
terminate upon receipt by the Board of a written notice of resignation signed by
the Employee or, if no notice is given, on the date on which the Employee
voluntarily terminates his employment relationship with the Company.
(e) In addition to the circumstances described in subsections
(a), (b), (c) and (d) above, the Company may terminate the Employee's employment
for any reason or no reason and with or without cause or prior notice. The
Employee understands that, subject to subsection (f)(iii) below, he is an at-
will employee and may be terminated by the Company without cause or prior notice
pursuant to this subsection (e) notwithstanding any other provision contained in
this Agreement. This at-will relationship will remain in effect during the term
of this Agreement and so long thereafter provided that the Employee remains
employed by the Company, unless such at-will employment relationship is modified
by a specific, express written agreement signed by the Company.
(f) If the Employee's employment is terminated pursuant to this
Section 4 or for any other reason, the Employee shall not be entitled to any
compensation or benefits from the Company, under Section 3 of this Agreement or
otherwise, except for the following:
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(i) base salary and vacation pay accrued, and reasonable
business expenses incurred, under Section 3 of this Agreement through the date
of such termination;
(ii) such benefits, if any, as may be required to be
provided by the Company under the Comprehensive Omnibus Budget Reconciliation
Act (COBRA); and
(iii) if the Employee's employment is terminated without
cause pursuant to subsection (e) above, the Company shall continue to pay to the
Employee the base salary described in Section 3(a)(i) above until the
termination of the initial term or any successive term, as set forth in Section
1(a)(i) of this Agreement, during which such termination occurs.
5. Employee's Representations.
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(a) The Employee represents that he has full authority to enter
into this Agreement and that he is free to enter into this Agreement and not
under any contractual restraint which would prohibit the Employee from
satisfactorily performing his duties to the Company under this Agreement.
(b) The Employee hereby agrees to indemnify and hold harmless
the Company, its officers, directors and stockholders from and against any
losses, liabilities, damages or costs (including reasonable attorney's fees)
arising out of a breach, or claimed breach, of any of the representations,
warranties and covenants of the Employee set forth in this Agreement.
(c) The Employee acknowledges that he is free to seek advice
from independent counsel with respect to this Agreement. The Employee has either
obtained such advice or, after carefully reviewing this Agreement, has decided
to forego such advice. The Employee is not relying on any representation or
advice from the Company or any of its officers, directors, attorneys or other
representatives regarding this Agreement, its content or effect.
6. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement or any breach hereof or the Employee's employment by the
Company or termination thereof, shall be settled by arbitration by one
arbitrator in accordance with the rules of the American Arbitration Association,
and judgment upon such award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. The arbitration
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shall be held in the City of Los Angeles or such other place as may be agreed
upon at the time by the parties to the arbitration.
7. Equitable Relief. The Employee acknowledges that the Company is
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relying for its protection upon the existence and validity of the provisions of
this Agreement, that the services to be rendered by the Employee are of a
special, unique and extraordinary character, and that irreparable injury will
result to the Company from any violation or continuing violation of the
provisions of this Agreement for which damages may not be an adequate remedy.
Accordingly, the Employee hereby agrees that in addition to the remedies
available to the Company by law or under this Agreement, the Company shall be
entitled to obtain such equitable relief as may be permitted by law in a court
of competent jurisdiction including, without limitation, injunctive relief from
any violation or continuing violation by the Employee of any term or provision
of this Agreement.
8. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the internal substantive laws (without regard to
choice of law principles) of the State of California.
9. Entire Agreement. This Agreement constitutes the whole agreement
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of the parties hereto in reference to any employment of the Employee by the
Company and in reference to any of the matters or things herein provided for or
hereinabove discussed or mentioned in reference to such employment; all prior
agreements, promises, representations and understandings relative thereto being
herein merged.
10. Assignability.
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(a) In the event the Company shall merge or consolidate with any
other corporation, partnership or business entity, or all or substantially all
of the Company's business or assets shall be transferred in any manner to any
other corporation, partnership or business entity, then such successor to the
Company shall thereupon succeed to, and be subject to, all rights, interests,
duties and obligations of, and shall thereafter be deemed for all purposes
hereof to be, the "Company" under this Agreement.
(b) This Agreement is personal in nature and the Employee shall
not, without the written consent of the Company, assign or transfer this
Agreement or any rights or obligations hereunder.
(c) Except as set forth in subsection (a) above, nothing
expressed or implied in this Agreement is intended or shall be construed to
confer upon
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or give to any person, other than the parties to this Agreement, any right,
remedy or claim under or by reason of this Agreement or of any term, covenant or
condition of this Agreement.
11. Amendments; Waivers. This Agreement may be amended, modified,
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superseded, canceled, renewed or extended and the terms or covenants of this
Agreement may be waived only by a written instrument executed by the parties to
this Agreement or, in the case of a waiver, by the party waiving compliance.
Any such written instrument must be approved by the Board to be effective as
against the Company. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the breach
of any term or provision contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
12. Notice. All notices, requests or consents required or permitted
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under this Agreement shall be made in writing and shall be given to the other
party by personal delivery, overnight air courier (with receipt signature) or
facsimile transmission (with "answerback" confirmation of transmission), if to
the Company, sent to such party's addresses or telecopy number as are set forth
below such party's signature to this Agreement, and if to the Employee, to his
address as set forth in the records of the Company, or such other addresses or
telecopy numbers of which the parties have given notice pursuant to this Section
12. Each such notice, request or consent shall be deemed effective upon the
date of actual receipt, receipt signature or confirmation of transmission, as
applicable.
13. Severability. Any provision of this Agreement that is prohibited
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. Survival. The representations and agreements of the Employee set
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forth in Sections 5, 6 and 7 of this Agreement shall survive the expiration or
termination of this Agreement (irrespective of the reason for such expiration of
termination).
15. Attorney's Fees. If any party to this Agreement seeks to enforce
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his or its rights under this Agreement, the prevailing party shall be entitled
to recover reasonable fees, costs and expenses incurred in connection therewith
including, without
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limitation, the fees, costs and expenses of attorneys, accountants and experts,
whether or not litigation is instituted, and including such fees, costs and
expenses of appeals.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Employment Agreement as of the date first above written.
L90, INC.,
a Delaware corporation
By /s/ Xxx Xxxxxxxxx
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An Authorized Officer
Address for Notices:
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
Telecopy: (000) 000-0000
EMPLOYEE:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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